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Biko Burrell v. Imperial Recovery Partners

July 11, 2011

BIKO BURRELL, PLAINTIFF,
v.
IMPERIAL RECOVERY PARTNERS, LLC, DEFENDANT.



The opinion of the court was delivered by: Honorable Nancy G. Edmunds

OPINION AND ORDER GRANTING PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT [7]

Before the Court is Plaintiff Biko Burrell's motion for entry of judgment pursuant to the clerk's entry of default. (Dkt. 7.) Plaintiff states that he is entitled to this judgment because Defendant Imperial Recovery Partners, LLC has failed to plead or otherwise defend this action. For the reasons and with the lim itations on damages stated below, the Court GRANTS Plaintiff's motion.

I. Facts

On April 5, 2011, Plaintiff filed his complaint alleging that Defendant violated the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. and the Michigan Occupational Code, Mich. Comp. Laws § 339.101 et seq.

Plaintiff alleges that Defendant improperly attempted to collect on "consumer type debt" that Plaintiff allegedly owed. (Com pl. ¶ 6.) Around November, 2010, Defendant started calling Plaintiff about the allegedly-owed debt. (Id. ¶ 7.) In February, 2011, Plaintiff asked Defendant to stop calling him and asked fo r something (reflecting the debt) in writing.

(Id. ¶ 8.) Defendant responded, "No, we are not going to do that." (Id.) Plaintiff states that he has not received anything in writing. (Id.)

A little over a month later, around March 17, 2011, Plaintiff alleges that Defendant's representative, "James," told Plaintiff that Defendant was "going to type in the computer [Plaintiff's] refusal to pa y and send this account back to Wells Fargo. Wells Fargo will garnish [Plaintiff's] wages." (Id. ¶ 9.) Plaintiff then told Defendant that he had an attorney, and gave the attorney's name and contract in formation; to which Defendant allegedly responded, "Your attorney cannot do anything about this." ( Id. ¶ 10.) Roughly a week later, Defendant called him again. ( Id. ¶ 11.) Plaintiff again informed Defenda nt that he had an attorney, and again Defendant responded negatively, stating "I don't care who you have, you owe a debt."*fn1 (Id.)

Plaintiff seeks actual, statutory, and treble damages, as well as statutory costs and attorney's fees.

II. Standard

Before a plaintiff can obtain a default judgment, the clerk must first issue an entry of default. After that, the plaintiff may obtain a default judgment, either from the clerk or the court. But to obtain a default judgment for an uncertain amount of damages--as here-- a plaintiff must seek the Court's leave for a default judgment. Fed.R.Civ.P. 55(b)(2). Rule 55 provides that the Court "may conduct hearings or make referrals--preserving any federal statutory right to a jury trial--when, to enter or effectuate judgment, it needs to:"

(A) conduct an accounting;

(B) determine the amount of damages;

(C) establish the truth of any allegation by evidence; or

(D) investigate any other matter.

Fed.R.Civ.P. 55(b)(2). But the Rule does not require the Court to hold a hearing on damages so long as a basis exists for the damages requested. Hett v. Bryant Lafayette and Assoc., LLC, No. 10-12479, 2011 WL 740460, at *2 (Feb. 24, 2011) (Borman, J.) (citing Yesligaj v. ...


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